Saji Koduvath & James Joseph, Advocates, Kottayam.

1. Special Features of Government Land

When considering adverse possession, two important distinctions arise between government properties and private properties.

• (i) Certain presumptions available;
• (ii) Period of Limitation – 30 years.

2. Presumptions in Favour of Govt. Lands

(a) There is a presumption in favour of Government – all lands which are not the property of any person or which are not vested in a local authority, belong to the Government.

(b) In order to defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government.

(c) In Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843, it was held as under –

• “In this country escheat is not based on artificial rules of common law; and is not an incident of feudal tenure.  It is incident sovereignty and rests on principle of ultimate ownership by the State of all property within the jurisdiction.”

(d) In Chotte Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361, held

• “the State is the ultimate owner of all property situate within its boundaries”.

(e) In Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1, it is held that it would be deemed that the disputed land vested in State and if the other side fails, in law,  it would be taken that the land was vested in State. (Followed in: Mohd. Shafiq v. Assistant Director of Consolidation, 2011-9 ADJ 24)

(f)  In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

• “15. …… All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.

(g) The law as to title of property is laid down in Union of India v. Ibrahim Uddin, 2012(8) SCC 148 as under –

• “The appellate courts examined the title of Government instead the plaintiff/respondent No. 1.  Such a course was not warranted.  The title of Government cannot be disputed.  In any event, possession of Government for decades is not disputed.  The plaintiff shifted the case from time to time; but failed to prove his title……….   The said courts did not realize that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit-land.”

(h) In Government of Kerala v. Joseph, AIR 2023 SC 3988 – It was pointed out –

• “When the land subject to proceedings wherein adverse possession has been claimed, belongs to Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

(i) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

• “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
• The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. …”

(j) In State of Kerala v. Pathrose Mathai, 1970 Ker LJ 517; 1969 KerLT 507, it was held as under:

• “There is also no presumption that a person who enters Government land, improves the same & keeps possession, is exercising acts hostile to the title of the State. This is because it is not uncommon for persons to enter upon Government land & reclain and improve such land in the hope of ultimately getting registry or lease of such land.”

3. Period of Limitation – 30 years

R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, continues (as regards period of limitation) as under:

• ” … The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.
• Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
• 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years.
• In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

4. Receiving Tax, after Mutation, by Govt.

(a) In case of a claim of adverse possession against Government (obviously, the claimant is not the owner), it is trite law –

• (a) mutation or payment of tax will not confer title (under adverse possession); and
• (b) acceptance of land tax (by the Govt.) is a mark of holding property a person. A tax payer cannot validly raise any “adverse” rights against the Government (for he is not admitting it to be the Govt. property, so as to claim ‘adverse’ rights against Govt.).

(b) Assume (or even if) the Govt. received tax for a long period, and the Govt. slept over its rights for long period (or inadvertently accepted or admitted the so claimed title of the claimant), it is also trite law – after 1963 Limitation Act, under Article 65 – there will be no question of ‘adverse possession’, for two things –

• 1. such a tax payer cannot validly say – he is possessing the Govt. property “adverse to” the interest of the Government (A plea of adverse possession is founded on the acceptance ownership, in another – Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461; Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)
• 2. that ‘possession’ is not one “started with wrongful dispossession” of the Govt. (Article 65, Limitation Act says as to 12 years from dispossession) (See: Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753; Government of Kerala v. Joseph,AIR 2023 SC 3988)

 (c) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was also held as under:

• “As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.

5. Denial of Title Possible, if only it is with the ‘knowledge as to the True Owner’; such denial must be ‘Made Known’ to the True Owner by the Claimant of Adv. Possn.

(a) Our Apex Court, in Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, it is held as under:

• “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other.”

(b) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

• “… … In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.”

(c) It observed in Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543, AIR 1995 SC 895, as under:

• “14. … Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. …
• 15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.” (Quoted in: T. Anjanappa v. Somalingappa – (2006) 7 SCC 570)

(d) If according to the claimant (of adverse possession), the true owner was not the actual owner, the claimants cannot claim adverse possession against him. In Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma Alias Nacharamma, (2008) 15 SCC 150, it was observed as under:

• “The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff’s title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner”. (Quoted in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461.)

(e) In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461, referring T. Anjanappa v. Somalingappa – (2006) 7 SCC 570, it is laid down as under:

• “If the defendants are not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise.”

(f) In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, it was pointed out by the Apex Court :

• The question of adverse possession without admitting the title of the real owner is not tenable.  

(g) In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461, our Apex Court allowed the appeal, negating the claim of adverse possession raised by the defendant, inter alia, for not accepting the title of the plaintiff (true owner), by the defendant. It was observed  as under:

• “16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff.”

(h) P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, it was observed as under:

• “7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” (Quoted in: M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)

6. Adverse possession  to the knowledge of the government

In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

• “A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession  to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.
• Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
• 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.
• To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.
• As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.” (Quoted in: Bhagi Ram v. State of H P (2023 April 10), Nathu Ram v. D D A (2022 February 1.)

6. ‘Slept-over Rights’ – No Meaning in Argument, If No case on Adv. Possn.

(a) Assuming (or even if), the Govt. slept-over its rights for long period and accepted the title deeds of the claimant (executed long back), such sleeping-over or acceptance gets relevance or meaning, only if –

• the claimant has founded its case on ‘adverse possession’ (and not title); and the claimant raised adverse possession in his pleadings
• “admitting the State to be the rightful owner”
  • (Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461;
  • Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1) and
• stating that the claimant had come into possession of the land by “a wrongful dispossession” of the State (under Article 65 of Limitation Act, 1963)
  • (Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779;
  • T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570];
  • PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753;
  • Government of Kerala v. Joseph,AIR 2023 SC 3988).

 (b) If the claimant (of the disputed Govt. property) bases his stance on its title, he has to resist the claim of the Govt. with that title-claim; and not on saying – “sleeping over on right” by the Govt, as it will be a totally irrelevant and alien matter.

(c) The aforestated momentous legal propositions cannot be simply winked-off in the light of the following stupendous and classic judicial edicts –

• Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779;
• T. Anjanappa v. Somalingappa – (2006) 7 SCC 570;
• PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753;
• Government of Kerala v. Joseph – AIR 2023 SC 3988.

(d) If no adverse possession, mere possession of a claimant (of adverse possession) or trespasser,  however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title. See:

• Government of Kerala v. Joseph, AIR 2023 SC 3988;
• Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461,
• Ram NaginaRai v. Deo Kumar Rai, 2019-13 SCC 324,
• Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756,  
• T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
• Chatti Konati Rao v. Palle Venkata Subba  Rao, 2010-14 SCC 316;
• Gaya Prasad Dikshit v. Dr.NirmalChander, 1984-2 SCC 286,
• Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591]

(e)  U.N. Mitra, in the “Law of Limitation and Prescription” (Tagore Law Lectures – 12^th Edition, Vol.2, Page 1430) stated as under:

• “A squatter is one who settles on land without title or with a view to acquiring title. He is a person who settles or locate on land enclosed or unenclosed with no bona fide claim or colour of title and without consent of the owner. He is merely an intruder and no matter how long he may continue there, no right in law vests in him. A squatter who does not set up a claim of right cannot plead adverse possession. No length of squatting possession would operate as a good or valid defence in a suit for possession by the true owner. A mere squatter or intruder who does not deny the title of the true owner or set up any right in himself cannot claim to be in adverse possession. ………” (Quoted in: K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98)

7. Burden of Proof – Complete change by Articles 64 and 65: In the recent decision, (g) (a) Government of Kerala v. Joseph, AIR 2023 SC 3988, our Apex Court observed that burden of proof rests on the person claiming adverse possession. The Court followed P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, which observed as under:

• “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent  complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”

(b) Owner “not take care to know notorious facts”  and hostile colour of title, required: Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, has held as under:

• “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession…”

8. TITLE and POSSESSION need not be proved by the True Owner

(a)   Under Article 65 of the 1963 Limitation Act, TITLE need not be proved by the true owner. Period of possession (or its losing – 12 years back or more) of true owner is attracted only if the claimant pleads “adverse” possession for 12 years or more.

Because, if only the claimant (of adverse possession) “admits TITLE of the rightful owner” and asserts “a wrongful dispossession” (Article 65, Limitation Act – period 12 years from dispossession) of the true owner, then only the claimant can raise adverse possession. Therefore, in such a case (that is, averment of true owner that he is the TITLE holder is admitted), the true owner need not prove title.

(b)   Similarly, previous possession of true owner (within 12 years or so) need not be proved by him.

 (c) Under the (new) Limitation Act, 1963 (Article 65), the true owner will lose title only if the trespasser proves ‘adverse’ possession for 12 years. Therefore the true owner has no burden to show possession within 12 years (as required under the old Act of 1908, under which it was provided that a true owner would lose title if he did not file suit within 12 years of losing title).

• In other words, the new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession against the true owner (knowing him and bringing his attention to the ‘trespass’).

(d) As shown above, a trespasser’s long possession is not synonymous with adverse possession. (Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729). If no adverse possession, mere possession of a claimant (of adverse possession) or trespasser,  however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title (Government of Kerala v. Joseph, AIR 2023 SC 3988; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461 etc.). For the above, under Art. 65 (which is based on title alone; and not previous possession), time-length of previous possession – or its lose – of true owner (or even the claimant) is immaterial. What matters is the ‘dispossession’ within 12 years by the claimant. It is to be pleaded and proved by him. In Ramiah v. M. Narayana Reddy, AIR 2004 SC 4261, 2004(7) SCC 541, it is held as under:

• “9. … Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. The question whether the article of limitation applicable to a particular suit is Article 64 or Article 65 has to be decided by reference to pleadings.” (Quoted in M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1.)

See : Sushila Kumari v. Rama Stores, AIR 2005 Del 401.

(e) In B. R. Anand v. DDA, 2005 SCC OnLine Del 910, it is held as under:

• “22. A trespasser on Government land would not be entitled to any show cause notice before he is removed from the public site. Hearing is to be granted to a person before a decision is taken or an action is taken which affects his valuable rights. If there is no right, question of the same being affected by non-grant of a hearing does not arise. The right and the remedy are given uno flatu, and one cannot be disassociated from the other. No one has a right to trespass on Government land. No statute was shown which requires show-cause notice to be given to a trespasser before he is removed. Common Law principle of right to be heard is not attracted as no right is being infringed.” (Quoted in: Chetan Rana v. Delhi Development Authority , 21 Feb, 2024)

In appeal (Markandeya Katju, CJ.) on the above judgment, in B. R. Anand v. DDA,2006-3 AD (Del) 632; 2006-128 DLT 354; 2006 88 DRJ 205, it is held as under:

• “The appellant was admittedly an unauthorised encroacher of the DDA land. It is true that he is blind but this did not entitle him to take the law into his own hands. While we may sympathise with him for his physical handicap, we cannot interfere in the matter as no one has a right to encroach on public land.“

9. Pleadings in Adverse Possession 

Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753, authoritatively lay down the modules as under:

• The claimant has been in ‘hostile and open, continuous uninterrupted as of right‘ possession of the land,
• in denial of the title of the rightful owner,
• adversely to the interest of the owner of the land,
• started with wrongful dispossession of the rightful owner
  • (Note: Article 65, Limitation Act – period 12 years from dispossession),
• exercising absolute rights of ownership in respect of the land,
•  on and from .. . .. (Specify date).

‘Hostile and open’ possession with ‘animus‘ thereof can be attracted when it is shown –

• Claimant’s acts were hostile enough to make the true owner aware of the adverse possession;
• or, the claimant made the true owner knew as to his hostile acts or adverse possession (from the inception).

10. Until prescriptive rights are brought in question, they are inchoate

Until prescriptive rights are brought in question, they are inchoate only. In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:

• “It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta v. S. Razaack, AIR 1982 Kant 314.)

This principle applies to adverse possession also.

11. Declaration – Article 65 and not Article 58 of the Limitation Act Governs

(a) In C. Natrajan v. Ashim Bai, AIR 2008 SC 363; 2007 14 SCC 183 (S.B. Sinha & Harjit Singh Bedi, JJ.), it is held as under:

• “13. If the plaintiff is to be granted a relief of recovery of possession, the suit would be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.”

(b)   In State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460, it was held by the Supreme Court that merely for the fact that the plaintiff, besides the relief of possession, sought declaration also is of no consequence, and that in such a case the governing article of the Schedule to the Limitation Act would be Article 65.

(c)   In page 752 of the Treatise by B. B. Mitra, the Limitation Act, 23^rd Edition, reads as under:

• “Article 65, and not Article 58, was attracted because no separate declaration was necessary, and the suit was essentially a suit for possession attracting Article 65. (State of Maharashtra v. Praveen, AIR 2000 SC 1099)”

(d)   If plaintiff has clear title in a suit for recovery on the strength of that title, plaintiff is not obliged to seek declaration (Padmavathy v. Kesava Reddy, 1987-2 KLT 386, Dr. Kochuthomman, J.; Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker. 405)

(e)    In Seshumull M. Shah v. Sayed Abdul Rashid, AIR 1991 Kar. 273, Karnataka High Court observed that a suit where possession is claimed as a consequence of the declaration, it would be governed by Article 65 and not Article 58 of the Limitation Act.

(f)    In S. Krishnamma v. T.S. Viswajith :  2009 (4) KLT 840, it is held that Article 58 is not applicable for declaration that is sought only as an ancillary relief. It is held as under:

• “When a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated as main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale v. Union of India & Another-AIR 1990 Bombay 98). Therefore declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.”

(g) In Aishani Chandna Mehra v. Rajesh Chandna,2019-0-Supreme(Del) 1-70; Laws (Dlh) 2019-1-288, (Rajiv Sahai Endlaw, J.) observed, referring his own earlier 3 judgments, as under:

• “23. Otherwise also, I have in Sunil Kohliv. Subhash Chand Dua 2016 SCC OnLine Del 3244, Ashok Kumar v. Mohd. Rustam(2016) 227 DLT 385,  and Capital Land Builders Pvt. Ltd. v. Komal, 2018 SCC OnLine Del 11867, held –
• (i) that in suits claiming relief with respect to immoveable property, the relief of declaration, even if claimed, is superfluous and the limitation for the suit would be governed by the limitation provided for the relief of possession; the longer limitation period provided for instituting a suit for recovery of possession would not be curtailed by the lesser limitation of three years provided for a suit for declaration;
• (ii) that to hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit, besides for the said relief is also for the relief of declaration of title and of twelve years, if no relief of declaration is claimed;
• (iii) that a relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed;
• (iv) that thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years; and,
• (v) that when a relief of declaration is coupled with the relief of possession, the larger period of limitation for the relief of possession and not the lesser period of limitation for the relief of declaration would apply.
• Reference in this regard may also be made to VidurImpex and Traders Pvt. Ltd. v. Pradeep Kumar Khanna (2017) 241 DLT 481 and C. Natrajan v. Ashim Bai (2007) 14 SCC 183.”

(h) In Ashok Kumar v. Gangadhar, 2007 (2) ALD 313, 2007 (3) ALT 561, it is held:

• “If the contention of the defendants that Article 58 applies to the suit for possession based on title where declaration of title is also sought, is accepted, it would amount to ignoring the relief for recovery of possession and application of Article 65 to a suit for possession and taking away the right of the plaintiff to prove that the suit is within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.  If such a suit were to be decided with reference to Article 58 on the ground that the declaration is sought for, application of Article 65 to the suit for possession would be rendered otiose.  Such a construction would be opposed to all principles of interpretation of statutes.  Therefore different Articles of the Limitation Act will have to be interpreted harmoniously.  When such an interpretation is given to Articles 58 and 65 and when the suit is filed for declaration of title to the suit property with consequential relief of possession in my humble view Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act”.

(i) It is held in Mechineni Chokka Rao v. Sattu Sattamma, 2006 (1) ALD 116, as under:

• “10…. It is obvious that Article 58 is in the nature of residuary provision among the declaratory suits. Indubitably the relief of declaration can be sought for in respect of an immovable property or movable property, or in respect of an instrument, or in respect of a decree, or in respect of an adoption. Thus, various types of declaratory reliefs can be sought for pertaining to those categories. Therefore, the relief of declaration alone appears to be not the criterion for prescribing the period of limitation but the subject-matter of the suit in respect of which the declaration is sought for, appears to be germane for consideration.”
• “13. The problem can be viewed in a different dimension. The right over an immovable property will get extinguished as can be seen from Section 27 of the Act only after the expiry of the period prescribed for filing the suit for possession as per Articles 64 and 65 of the Act. Therefore, if the period falls short of the requisite period of 12 years the right over an immovable property will not get extinguished. When the person has a right over an immovable property which right is not extinguished as yet, he can lay the suit in respect of an immovable property even praying for the relief of declaration at any time within the period of 12 years at the end of which, his right would get extinguished. When we consider this clear mandate contained in Section 27 f the Act, it becomes manifest that a declaratory relief in respect of an immovable property can be sought for at any time within the period of 12 years after which the right will get automatically extinguished, notwithstanding the fact that Article 58, the residuary Article for filing declaratory suits, prescribes a period of three years limitation. … ….”

12. Should Private Sale Deeds be Challenged By Govt.

No. For two reasons:

• First, if only the State is admitted to be to be the rightful owner then only the question of adverse possession arises against Government (Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461).
• Second, if only the State is a party to the disputed deed, it is needed to seek relief for setting aside the deed; otherwise, the document can be ignored by the State (Sankaran v. Velukutty, 1986 KerLT 794).

13. Plea of Title and Adverse Possession – Whether Mutually Contradictory?

In Government of Kerala v. Joseph, AIR 2023 SC 3988, it is held as under: 

• “21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 elaborated this principle as:
• “15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
• This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (AIR 1996 SC 910, 1996 1 SCC 639 –two Judge Bench) –
• “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, necprecario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
• The Court in Uttam Chand (Sri Uttam Chand v. Nathu Ram AIR 2020 SC 461) has reiterated this principle of adverse possession.”

(Note: Mutually destructive plea is impermissible: (2006) 12  SCC 233, AIR 2009 SC 2355).

14. Date of Adverse Possession & knowledge to the True Owner etc.

Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 explored Animus possidendi as a requisite ingredient of adverse possession. It was found that a mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner. The date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed – must be established. (Relied on in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46).

15. Denial of Title of the True Owner

In Kurella Naga Druva Vudaya Bhaskara Rao the courts had pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff’s title would not have been sufficient and that the defendant had to show that his possession was also hostile to the title and possession of the true owner.

16. It not sure who the true owner is, there will be no Adverse Possession

Adverse possession is hostile possession which is expressly or impliedly in denial of title of the true owner. To attract adverse possession there must be animus possidendi to hold the land adverse to the title of the true owner (Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316; M. Venkatesh v. BDA, 2015-17 SCC 1; Brijesh Kumar v. Shardabai, 2019-9 SCC 369) with the knowledge of the true owner. If the defendants are not sure who the true owner is, there will be no question of possessing the property hostile to the true owner (T. Anjanappa v. Somalingappa, 2006-7 SCC 570; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46).

17. Claimant must have accepted title of the true owner

For claiming adverse possession against Govt., the claimant should have admitted the State to be the rightful owner when such a claim is raised

The Constitution Bench of our Apex Court, in M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, it was held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under:

• “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed.”(Quoted in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461).

In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461, our Apex Court allowed the appeal, negating the claim of adverse possession raised by the defendant, inter alia, for not accepting the title of the plaintiff (true owner), by the defendant. It was observed  as under:

• “16. … The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.”

18. No Equities in favour of a Person Pleading Adverse Possession

In Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316, it is observed as under:

• “A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.” (Relied on in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46)

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